As per the case facts, a mother filed a writ petition to gain custody of her minor children, who were born from her marriage with the respondent-father. The couple had ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 402 OF 2021
RAJESWARI CHANDRASEKAR GANESH …PETITIONER(S)
VERSUS
THE STATE OF TAMIL NADU & ORS. …RESPONDENT(S)
J U D G M E N T
J.B. PARDIWALA, J. :
1. This writ petition under Article 32 of the Constitution of
India involves a contest over the custody of children born out of
the wedlock between the petitioner-mother and the respondent
no.2-father. The respondents nos.4 and 5 respectively are the
brother and father of the respondent no.2.
2. The petitioner-mother has prayed for the following reliefs :
“(a) Issue an appropriate writ, order or direction in
the nature Habeas Corpus to the Respondent No.1 to
immediately trace and produce the minor children
Lakshaya Ganesh and Bhavin Sai Ganesh before this
Hon’ble Court and deliver their custody to the Petitioner
Mother so as to repatriated them to the U.S. in
compliance with the Order passed by the U.S. Court
dated 30.07.2021.
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(b) issue a direction to the Respondent No.3/Director
of CBI to trace the minor children Lakshaya Ganesh
and Bhavin Sai Ganesh and to produce them before
this Hon’ble Court, since the Respondent No.2 is not
traceable.
(c) issue an appropriate writ, order or direction in the
nature Habeas Corpus to Respondent No.2 to cooperate
with anyone appointed by the Petitioner Ex-Wife to
transport the minor children – Lakshaya Ganesh and
Bhavin Sai Ganesh to the United States within a time
frame;
(d) Pass such other order or further orders and
directions as this Hon’ble Court may deem fit and
proper in the facts and circumstances of the case and
in the interest of justice.”
3. The case put up by the petitioner -mother may be
summarised as under :
4. The marriage between the petitioner and the respondent
no.2 was solemnized on 31
st October 2008 as per the Hindu rites
and rituals at Chennai, India. Within one month from the date of
the marriage, the parties migrated to the Bear, Delaware, USA.
5. The respondent no.2, at the relevant point of time, was
working with the Satyam Computers. Sometime in May 2009,
the parties were constrained to return to Chennai, India, as the
project that the respondent no.2 had been working on with the
Satyam Computers got terminated on account of some internal
issues in the company.
6. On 7
th October 2009, the parties were blessed with a
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daughter named Lakshaya Ganesh. It appears from the
materials on record that sometime in January 2012, the
respondent no.2 was able to secure a job in Kansas, USA. Since
2012, the parties have been residing in the USA.
7. It further appears that between April 2012 and November
2012, the respondent no.2 lost several jobs, and in such
circumstances, the parties had to shift from Kansas, USA, to
Boston, Massachusetts, USA. Sometime later, they shifted to
Findlay, Ohio, USA. In January 2012, the minor daughter
Lakshaya Ganesh started her preschool at the Owen’s Day Care,
Findlay, Ohio, and thereafter, was admitted to a kindergarten at
the Lincoln Elementary School, Findlay, Ohio. While the minor
daughter Lakshaya was studying in the kindergarten, the
teachers over there noticed that Lakshaya was a gifted child, i.e.
a child with a remarkable IQ level. The parties were blessed
thereafter with a son named Bhavin Sai Ganesh on 20
th July
2013 at the Blanchard Valley Hospital, Findlay, Ohio. The minor
son Bhavin Sai Ganesh is a U.S. citizen by naturalization and
holds an American passport.
8. In March 2016, the petitioner cleared her GRE and TOEFL
and secured admission in the Cleveland State University Ohio,
USA. The respondent no.2, on the other hand, lost yet another
job.
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9. It is the case of the petitioner that she started living in a
room with eight other girls and her minor children. She attended
the university and had to take up two jobs to feed and take care
of herself and her minor children.
10. By December 2016, both the children started going to
school. It is her case that she used to take care of her children in
all respects. Sometime in August 2016, the respondent no.2
moved for yet another job to Milwaukee, Wisconsin, and in such
circumstances, the petitioner had to stay all alone with the
minor children and take care of them.
11. In May 2018, the petitioner completed her Master’s in
Computer and Inf ormation Science and also obtained a
Graduate Certificate in Data Analytics with the GPA of 3.64. She
started working with the G&S Metal Products. On the other
hand, in April 2019, the respondent no.2-father managed to find
a full time job in Michigan, USA.
12. It is the case of the petitioner that once the respondent
no.2 was able to procure a full time job in Michigan, USA, he
started conceiving ideas of taking away the minor children.
13. It is the case of the petitioner that on 1
st June 2019, the
respondent no.2 picked up the minor children and left for
Michigan, USA, from Cleveland, Ohio, without informing the
petitioner-mother.
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14. It is alleged that the respondent no.2 also took away all the
legal documents of the petitioner including her passport, State
ID, home keys, car keys along with the documents of the minor
children.
15. It is alleged that the petitioner was locked in her own
house. It is also alleged that with a view to ensure that the
petitioner had no recourse/redressal, the respondent no.2,
before leaving for Michigan, USA, lodged a false complaint with
the local police that the petitioner was mentally ill and that she
had run away from a mental ward.
16. In such circumstances referred to above, the petitioner was
constrained to immediately file an Emergency Motion for
Temporary Custody of the minor children along with a complaint
for divorce before the Court of Common Pleas, Division of
Domestic Relations, Cuyahoga County, Ohio. The court
concerned, vide order dated 17
th June 2019, granted temporary
custody of the minor children to the petitioner.
17. It is alleged that despite such order being passed by the
court of Common Pleas referred to above, the respondent no.2
paid no heed to such order and continued to keep the children
away without allowing them to talk with their mother.
18. It appears that the petitioner also filed for an Emergency
Motion restraining the removal of the minor children from the
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jurisdiction of the Ohio Court. The court concerned passed a
restraint order in favour of the petitioner on the same date, i.e.
17
th June 2019.
19. Sometime in July 2019, one Ms. Megan was appointed by
the US Court as the guardian-ad-litem. However, the order
granting the custody of the minor children to the petitioner was
not acted upon by the respondent no.2.
20. In August 2019, the US Court directed supervised
visitation and referred the parties to mental evaluation experts.
21. It is the case of the petitioner that despite the custody
order dated 17
th June 2019 passed in favour of her, the
respondent no.2, without seeking permission of the US Court
and without informing the petitioner, removed the minor
children from the specialized school in Ohio to Allegan,
Michigan. While doing so, the respondent no.2 did not even
furnish the details of the petitioner-mother including her contact
number, etc. so as to completely alienate the petitioner from her
children.
22. It is the case of the petitioner that thereafter the
respondent no.2 started administering threats that he would
take away the children to India. As a result of such threats, the
petitioner was constrained to bring the necessary facts to the
notice of the Court concerned. The Court concerned directed that
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the passport of both the minor children be put in the Court’s
custody.
23. As the respondent no.2 was not able to remove the minor
children from the USA, he decided to alienate the children from
the petitioner-mother by refusing her unsupervised visitation. It
is alleged that the respondent no.2 prevented the children from
reaching out to their mother and it was o nly with the
intervention of the expert evaluator, namely Dr.Mark Lovinger,
that the petitioner was allowed to spend time with the minor
children.
24. In November 2019, both the expert evaluators, submitted
their opinion, stating that the petitioner was fit to have
unsupervised time with the children and there was no merit in
any of the allegations levelled by the respondent no.2.
25. In February 2020, the petitioner was able to procure a new
job and obtained H1B visa via sponsorship. The petitioner moved
back to Findlay, Ohio, where the minor son was born and was
able to secure a new apartment with good facilities for the
children. However, according to the petitioner, the respondent
no.2 failed to abide by the custody order dated 17
th June 2019
and also failed to abide by the evaluation reports recommending
unsupervised visitation to the petitioner qua the minor children.
It is alleged that the respondent no.2 declined to bring the
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children to the petitioner and allowed her to visit them only in
his presence.
26. It appears that a shared parenting plan was arrived at
between the parties vide order dated 12
th May 2021 passed by
the Court of Common Pleas, Division of Domestic Relations,
Cuyahoga County, Ohio. The shared par enting means the
parents share the rights and responsibilities as provided for in a
plan approved by the Court as to all or some of the aspects of the
physical and legal care of their children. The mother and the
father together, under a shared parenting a greement, are
granted custody, care and control of the minor children until
further order that may be passed by the Court subject to certain
terms and conditions. By virtue of the shared parenting plan
referred to above, both the parties got joint custody of their
children. The visitation schedule was clearly laid down in the
shared parenting plan dated 12
th May 2021. The parties agreed
to not relocate without the consent of the other party and
without the Court’s permission by way of a 60 day prior notice
and the passports of the children were to stay in alternation with
the non-custodian parent while the children were in the custody
of the other parent.
27. It appears that a separation agreement was also entered
upon between the parties dated 27
th July 2021. On 28
th July
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2021, the respondent no.2 sent an email to the US Court in the
form of an intimation that he would like to take his minor
children on a vacation to India and asked the petitioner-mother
to keep the children for three weeks.
28. On 15
th August 2021, the respondent no.2 posted a travel
itinerary. The petitioner noticed that the itinerary was such that
the children would miss their school by a week. The petitioner
declined to accept the itinerary. The petitioner requested the
respondent no.2 to go to India for his vacation, and during that
period, the kids would stay with their mother.
29. It is the case of the petitioner that the respondent no.2, out
of spite, called upon the local police levelling false allegations
that the petitioner was causing harm to her children owing to an
alleged mental illness. The local police responded to the call and
after due verification arrived at the conclusion that the children
were healthy and were well taken care of by the petitioner. The
case was accordingly closed.
30. It appears that on 16
th August 2021, the respondent no.2
lodged one another complaint with the police. The petitioner had
to leave her house with the minor children so as to consult her
lawyer. She requested her friend to take care of her children
while she was gone. When the friend of the petitioner reached
the petitioner’s house, the children were nowhere to be found. In
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such circumstances, the petitioner immediately called up the US
police at Findlay, Ohio. At 10:00 pm., the respondent no .2
informed the petitioner that the children were in Michigan.
31. It is the case of the petitioner that on 16/17
th August 2021
at 2:55 am, she received a distress call from her minor daughter
Lakshaya Ganesh aged 12. The petitioner noticed that her minor
daughter Lakshaya Ganesh was crying on phone. The minor
daughter also informed the petitioner-mother that she was in
Chicago and the father was intending to take them to India. The
petitioner was shocked to hear what was informed by her
daughter on phone, as the respondent no.2 was not scheduled to
travel to India before 19
th August 2021 as per his own itinerary.
The minor daughter revealed to the petitioner-mother that the
respondent no.2-father had sent an incorrect itinerary.
32. It is the case of the petitioner that the respondent no.2
clandestinely and with a view to solely removing the children
from the USA and from the joint custody of the petitioner, left for
India with the two minor children on 17
th August 2021.
33. On 18
th August 2021, being completely unaware of the
respondent no.2 having left for India with the minor children, the
petitioner immediately moved an Emergency Motion for
restraining the respondent no.2 from removing the minor
children from the USA. The Court concerned granted the order
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as prayed for by the petitioner. It was after this order that,
according to the petitioner, she checked with the Etihad Airways
to confirm the itinerary of the respondent no.2 and found that
the one submitted by the respondent no.2 was incorrect.
34. The petitioner later discovered that the respondent no.2
had already flown out with the minor children on 17
th August
2021 against his own itinerary. The respondent no.2 was
supposed to leave on 19
th August 2021.
35. The petitioner desperately tried to get in touch with her
minor daughter on phone between 16
th August 2021 and 21
st
August 2021 but her phone was found to be switched off. On
21
st August 2021, the petitioner received a call from her minor
daughter pleading with the petitioner-mother to take her back to
the USA.
36. The petitioner-mother consoled her minor daughter not to
panic or confront the respondent no.2-father less he would harm
her. The petitioner was also informed by her minor daughter that
the respondent no.2 had first taken them to someone’s house at
Chennai and was thereafter planning to move to the house of
their grandfather.
37. At this stage, we would like to reproduce the verbatim
averments made by the petitioner as contained in paragraphs 25
to 28 respectively. We quote the necessary averments thus :
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“25. That the Petitioner Ex-Wife has been deliberately
kept away from the children since 2019 and finally
when the Settlement Agreement/In-Court Agreement
allowed the Petitioner Ex-Wife to enjoy the company of
the minor children that the Respondent no. 2 had
deprived her off, the minor children have now been
abducted by the Respondent No.2 and illegally
removed from the US. That the Respondent No.2
deliberately left with the legal documents of the minor
children in absolute breach of the terms of the
Settlement Agreement dated 30.07.2021 and switched
off the minor daughter’s phone to block any and every
channel of communication with the Petitioner Ex-Wife.
The Respondent No.2 has a manic tendency of
harassing and torturing the Petitioner Ex-Wife to no
extent and in this final blow has misused the children
as a weapon to seek vengeance from the Petitioner Ex-
Wife.
26. The minor children are currently nowhere to be
found and the Petitioner’s father has made all possible
attempts to trace the minor children in Chennai. The
Petitioner Ex-Wife’s father tried to trace the minor
children to the Respondent No.2’s brother’s house i.e.
the Respondent No.3 at Tripti Apartments, Apt No.20,
Marshall Enclave, 15/8 Egmore, Chennai but the guard
told him that the said house had been vacat ed
alongwith the two children. Thereafter, he also checked
at the Respondent No.2’s parental home i.e. the
Respondent no.5’s house at No.5, State Bank Colony,
A.A Road, Virudhunagar, Tamil Nadu however, the
children were not even found here. The Respondent No.
2 has therefore, fled the US with the minor children
and has been moving around the country completely
unknown to the Petitioner mother and to the complete
detriment to the minor children who have been missing
their school and their home in the US. The Respondent
No. 2 and his family have been hand in glove in
keeping the Petitioner Ex-Wife deprived of the company
of the minor children. That the Petitioner’s father
fearing for the safety and welfare of the minor children
has made a complaint to the Superintendent of Police,
Collectorate Complex, Virudhunagar, Tamil Nadu on
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13.09.2021 requesting him to investigate into the case
of searching for the minor children who have been
illegally removed from their parent nation.
27. That on 21.9,2021 in furtherance to the complaint
made by the Petitioner Ex-Wife’s father, the
Virudhanagar Police, Chennai informed the Petitioner’s
father that the minor children could not be found
neither at the residence of the Respondent No.4 at
Tripti Apartments, Egmore, Chennai nor at the
residence of the grandfather i.e. the Respondent No.5.
Further now the Petitioner Ex-Wife has also found out
through the Police Authorities in Ohio, USA that the
Respondent No.2 is planning to shift to Maharashtra
and shifted his job in Perrigo, Allegan, ‘Michigan, USA
to Maharashtra, India. The Petitioner is thus at a
complete loss is absolutely unaware of the
whereabouts of the minor children and of the
Respondent no. 2.
28. The minor children are being kept away from the
Petitioner Ex-Wife who has equal parental rights and
responsibilities qua the minor children as laid out in
Settlement Agreement dated 30.07.2021. The
Respondent no. 2 Ex-Husband is willfully disobeying
the Orders of the US Court by detaining the minor
children somewhere in India not just contrary to the
Settlement Agreement but also against the wishes and
interest of the minor children who have been plucked
out of their society based on the Respondent Ex -
Husband’s whim. The US Court is t he ONLY Court
having jurisdiction over the minor children as the
children are permanent citizens of the USA and the
minor son Bhavin Sai Ganesh is a citizen of the USA
and holds an American Passport. The children’s
education is suffering as they were abducted from the
USA mid-term and despite the Petitioner Ex-Wife’s
incessant efforts to make the Respondent No.2
understand the implications of his actions, the
Respondent No.2 Ex -Husband has become
unresponsive and untraceable alongwith the children.”
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38. It would not be out of place to state over here that the
shared parenting plan referred to above by us in paragraph 26
ultimately came to be terminated by the Court at Ohio vide order
dated 9
th February 2022 at the instance of the petitioner-mother.
We quote few relevant observations made by the Court at Ohio
as under :
“33. Defendant/Father’s failure to return the children
from India was a clear violation of the consent order,
as follows :
“a. Defendant/Father failed to honor Part
I(C)(1) of the Shared Parenting Plan, whereby he
pledged to “provide the children with an
emotional environment in which the children are
free to continue to love the other Parent and
spend time with them.”
b. Defendant/Father failed to honor Part
I(C)(3) of the Shared Parenting Plan, whereby he
pledged to “allow the children to telephone on a
reasonable basis.”
c. Defendant/Father failed to honor Part
I(C)(4) of the Shared Parenting Plan, whereby he
pledged to “communicate with the other Parent
openly, honestly, and r egularly to avoid
misunderstandings which are harmful to the
children.”
d. Defendant/Father failed to honor Part
I(C)(7) of the Shared Parenting Plan, whereby he
pledged “not to withhold time with the other
Parent as a punishment to the children or the
other Parent.”
e. Defendant/Father failed to honor Part
I(C)(10)(a) of the Shared Parenting Plan,
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whereby he pledged to honor the children’s
rights to a continuing relationship with both
parents.
f. Defendant/Father failed to honor Part
I(C)(g) of the Shared Parenting Plan, whereby he
pledged to honor the children’s rights to
“experience regular and consistent contact with
both Parents and the right to know the reason
for any cancellation or change of plans.”
g. Defendant/Father has withheld parenting
time from Plaintiff/Mother, as specified above. :
h. Defendant/Father never provided the
children’s passports to the Plaintiff/Mother.
34. It is in the best interests of both children to be
returned immediately to the jurisdiction of the United
States.
35. The children are familiar with and acclimated to
the culture of the United States and have thrived while
studying in schools in the United States. In addition,
the minor children have friends in the United States,
and are acclimated to the surroundings of the United
States.
36. Defendant/Father violated the Shared Parenting
Plan by failing to provide three weeks prior notice of the
itinerary.
37. Defendant/Father violated the Shared Parenting
Plan by failing to place the passports with
Plaintiff/Mother
38. Defendant/Father t ook the ch ildren
surreptitiously to India, a country of which the children
had little familiarity.
39. One of the major components of the Shared
Parenting Plan is that the Plaintiff and Defendant
consistently communicate regarding the best interests
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of their children. Defendant/Father has failed to
communicate with Plaintiff/Mother. Plaintiff/Mother
does not know where her minor children are living or if
Defendant/Father ever intends to return them to the
United States.
40. A change of circumstances exists in the children’s
situation, they being surreptitiously removed to India
without notice to Plaintiff/Mother and without any
plans to return.
41. It is in the children’s best interest for the Shared
Parenting Plan to be terminated.
42. It is in the c hildren’s best interest for
Plaintiff/Mother to be named as residential parent and
legal custodian.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that:
1. Plaintiff/Mother’s Motion to Terminate the Shared
Parenting Plan and Designate Plaintiff as Residential
Parent and Legal Custodian (No. 444481) is GRANTED
in the best interests of the minor children.
2. Plaintiff/Mother, Rajeswari Chandresekar is
hereby designated as the residential parent and legal
custodian of daughter L akshaya Ganesh, DOB
10/7/2009, and son Babvinsai Ganesh, DOB
7/20/2013.
3. Defendant/Father shall make the children
immediately available to communicate with
Plaintiff/Mother and allow for daily communication
between the children and their mother until t he
children are in her custody.
4. Defendant/Father shall immediately return the
children’s passports to Plaintiff/Mother, or in the
alternative arrange for and surrender the children’s
passports to the Indian Court or a US Consulate in
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India. Plaintiff/Mother may apply for replacem ent
passports for the minor children without consent of
Defendant/Father.
5. Defendant/Father shall incur all transportation
costs for the return of the children to the United States
of America, per an itinerary to be determined by
Plaintiff/Mother.
6. Defendant/Father shall submit to a n
independent psychological evaluation at DeBalzo,
Elugdin, Levine, Risen LLC, with Dr.Mark Lovinger for
the determination of Defendant/Father’s ability to
appropriately care for and co-parent the minor children,
which shall include psychological and chemi cal
evaluation as deemed appropriate, at
Defendant/Father’s costs.
7. Defendant/Father’s visitation with the minor
children is suspended until this Court can determine if
visitation is appropriate.
8. Plaintiff/Mother shall be responsible for all non-
emergency medical decisions, emergency medical
decisions, and educational decisions regarding the
minor children.
9. For school purposes, Plaintiff/Mother’s residence
shall dictate school enrollment for the children.
10. This order is enforceable by any and all law
enforcement agencies, including, but not limited to the
Federal Bureau of Investigation, State Departments,
and Immigration Authorities in both the United States
of America and India.
11. This matter shall be set for further hearing upon
Plaintiff/Mother’s Motion to Show Cause, filed
September 27, 2021 (No. 444480), and the request of
Plaintiff/Mother for attorney’s fees pursuant to ORC
§3105.73 for the change of custody motion.”
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39. In such circumstances referred to above, the petitioner-
mother is here before this Court with the present petition under
Article 32 of the Constitution of India seeking a Writ of Habeas
Corpus.
40. Vide order dated 28
th September 2021, this Court issued
notice to the respondents, making it returnable within two
weeks.
41. On 8
th December 2021, time was prayed for on behalf of
the respondents nos.2, 4 and 5 respectively to file counter -
affidavit. Three days’ time was granted to the respondents to file
their counter affidavit.
42. On 28
th January 2022, this Court passed the following
order :
“List this matter on 04.02.2022, as in the meantime,
learned counsel for the respondent no.2 has expressed
hope that she would be able to impress upon
respondent no.2 to take appropriate measures for
finding amicable solution bet ween the parties
themselves.”
43. On 28
th February 2022, this Court passed the following
order :
“The Mediator’s Report does indicate that the parties
were unable to arrive at an amicable settlement.
Nevertheless, in deference to the observation made by
this Court, learned counsel for the respondent(s) prays
for some more time to find out some workable
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arrangement between the parties.
As the respondent(s) has shown willingness in this
regard, by way of indulgence, we defer the hearing of
this matter till 04.04.2022.”
44. On 8
th April 2022, this Court passed the following order :
“Learned counsel for respondent no.2 on instructions
submits that respondent no.2 is seeking one week’s
more time to interact with the petitioner and try to work
out amicable arrangement, if possible.
As a result, we give one more chance to respondent
no.2, as prayed.
List this matter on 02.05.2022.”
45. On 2
nd May 2022, this Court passed the following order :
“By way of indulgence and on the insistence of learned
counsel for the private respondents, we defer the
hearing of this matter till 13
th May 2022.
We make it amply clear that no further request for
adjournment will be entertained at the instance of the
private respondents on future date.”
46. Thus, as the parties were not able to arrive at an amicable
settlement, the matter was finally heard on 13
th May 2022.
STANCE OF THE RESPONDENT NO.2 :
47. According to the respondent no.2, the present petition filed
by the petitioner seeking custody of her minor children so as to
repatriate them to the USA is nothing but an abuse of the
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process of law and not maintainable. According to the
respondent no.2, the present petition is not maintainable as
India is not a signatory to the Hague Convention. The terms of
the Hague Convention are not binding on the Indian parties and
courts.
48. The respondent no.2 had given prior notice to the
petitioner about his travel to India with children for a period of
two weeks via email dated 28
th July 2021. The respondent no.2
had also informed the petitioner about the travel date, i.e. 19
th
August 2021, via email dated 15
th August 2021. The respondent
no.2 had, via email dated 16
th August 2021, informed the
petitioner about the address where they would be s taying in
India. However, owing to the pandemic, there were changes in
the international travel norms. The transit locations of travel, i.e.
the Middle East countries, were removed from the safety green
list and a stay of 14 days in a transit location was made
necessary before flying to the home country. According to the
respondent no.2, it is on account of such unforeseen
circumstances that he had to make prompt changes in the travel
plan, get the RTPCR test, etc. and then travel to India to avoid a
14 days’ stopover in the Middle East, which would have caused
lot of inconvenience to the children including the financial
burden for three persons.
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49. It is the case of the respondent no.2 that the custody of the
children with him cannot be said to be unlawful in any manner.
The custody of the minor children with the father can never be
termed as unlawful or illegal. According to the respondent no.2,
the holiday was planned with the express consent of the
petitioner-mother and both the children had a talk with their
mother, i.e. the petitioner, on 17
th August 2021 before leaving for
India. Thereafter also, the children spoke to the petitioner-
mother on 22
nd August 2021 on arrival in India. All throughout,
the petitioner was kept informed about the whereabouts of the
minor children.
50. According to the respondent no.2, this litigation is nothing
but an outcome of several mental health issues on the part of
the petitioner. The respondent no.2 has levelled serious
allegations against the petitioner that she has been diagnosed
with several mental health issues and has been on medication
for several issues for treatment of depression, bipolar disorder,
schizophrenia, obsessive compulsive disorder, etc. According to
the respondent no.2, it is the erratic behaviour of the petitioner
that has resulted in his loss of job. It is alleged that the
petitioner had approached the employer of the respondent no.2,
namely Perrigo, Allegan, Michigan, USA, and created a
distressing seen, thereby resulting in termination of the
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respondent no.2’s employment with immediate ef fect. As the
respondent no.2 is not an American citizen nor is he a Green
Card holder, the loss of job means that he cannot go back to the
US without the work permit.
51. It is the case of the respondent no.2 that it is the petitioner
who created a situation beyond repair, which ultimately led to
the cancellation of visa.
52. According to the respondent no.2, he is not in a position to
go back to the US as he has no means to reach the US and start
a living without a steady job. According to him, he cannot allow
his children to go back to their mother, i.e. the petitioner, having
regard to the alleged mental disorder of the petitioner. According
to the respondent no.2, the mental illness of the petitioner may
increase the risk of the minor children’s emotiona l and
developmental growth. It is the case of the respondent no.2 that
both the children are very happy residing in India with their
grandparents. Both the children have been admitted in a very
good school at Chennai. Their education is being taken care of in
the best possible manner. All other allegations levelled in the
memorandum of the writ petition have been denied.
53. According to the respondent no.2, he was to return to
Chicago on 2
nd September with the children. He had confirmed
tickets of Etihad Airways, but for the unnecessary hue and cry
23
raised by the petitioner, a situation was brought around by
which the respondent no.2 lost his job and consequently, the
work permit came to be cancelled.
54. In such circumstances, it is the case of the respondent
no.2 that the present petition under Article 32 of the
Constitution of India seeking a Writ of Habeas Corpus is not
maintainable. It is not maintainable as the father, being the
natural guardian of his children, the custody of the father
cannot be termed as illegal or unlawful restrain on the minor
children. In that context, no writ of Habeas Corpus can be
issued. It is the case of the respondent no.2 that before a writ of
Habeas Corpus can be issued, it has to be shown that there is
either unlawful detention or custody or there is an imminent or
serious danger to the person detained, particularly if he or she is
a minor.
55. We take notice of the fact that a rejoinder has also been
filed to the reply of the respondent no.2. Few additional affidavits
have also been filed by the respondent no.2, by and large
reiterating what has been referred to above.
SUBMISSIONS ON BEHALF OF THE PETITIONER :
56. Mr. Prabhjit Jauhar, the learned counsel appearing for the
petitioner, vehemently submitted that both the children are not
24
residents of India. The minor daughter Lakshaya came to the
USA at the age of 2 in the year 2012 and started her schooling
from Findlay, Ohio, USA. She is well entrenched in the social
and cultural milieu of the USA and could be said to have been
plucked out of the same without ascertaining her wishes. The
minor daughter Lakshaya, as on date, is 12 years of age and can
well express her desires. The minor daughter is a permanent
resident of the USA and has been residing, studying and
socializing in the USA. The custody of the minor daughter
Lakshaya with her father, i.e. the respondent no.2, could be
termed as illegal as the same is against the settlement agreement
dated 30
th July 2021 that had been mutually arrived at by and
between the parties before the US court. The respondent no.2 –
father has managed to keep the custody of the children by
flouting various orders passed by the US courts. He cannot be a
beneficiary of his own wrongs.
57. The minor son Bhavin Sai Ganesh is an American citizen
holding an American passport and, therefore, he is ordinarily a
resident of the USA. The minor son Ganesh Sai is 8 years of age
and has been in the USA since his birth. His custody with the
respondent no.2 at Chennai could also be said to be illegal, more
particularly, could be said to be in contravention of the
settlement agreement dated 30
th July 2021.
25
58. The allegations levelled by the respondent no.2 that the
petitioner is suffering from various mental disor ders are
reckless, far from being true. If the petitioner had any mental
issues and the respondent no.2 was so much concerned about
the interest and welfare of his two minor children, then there
was no good reason for him to go for the settlement agreement
dated 30
th July 2021. The respondent no.2 could be said to be in
gross and blatant contempt of the various orders passed by the
US court. He could be said to have kept the custody of the
custody of the minor children illegally. His act has deprived the
petitioner as a mother to take care of her m inor children in
accordance with the shared parenting plan and allocation of
parental rights and responsibilities.
59. Mr. Jauhar, the learned counsel appearing for the
petitioner, submitted that even with all that the respondent no.2
has done, the petitioner is still ready and willing to abide by the
shared parenting plan and allocation of parental rights and
responsibilities. The respondent no.2 should, at the earliest,
return to the USA with both the minor children and abide by the
various orders passed by the US courts, more particularly, the
shared parenting plan.
60. The learned counsel would submit that the respondent
no.2 should be asked to apply for a fresh visa at the earliest
26
pointing out to the authorities concerned that he is duty-bound
in law to go back to the USA with both the minor children so as
to abide by the shared parenting plan and the order that may be
passed by this Court.
61. Mr. Jauhar, the learned counsel, has p laced strong
reliance, in support of his submissions, on the following case-
law:
(1) Elizabeth Dinshaw v. Arvand M. Dinshaw,
(1987) 1 SCC 42;
(2) V. Ravi Chandran v. Union of India and others,
(2010) 1 SCC 174;
(3) Shilpa Aggarwal v. Aviral Mittal,
(2010) 1 SCC 591;
(4) Lahari Sakhamuri v. Sobhan Kodali,
(2019) 7 SCC 311;
(5) Surinder Kaur Sandhu v . Harbax Singh Sandhu,
(1984) 3 SCC 698.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 :
62. Ms. Meenakshi Arora, the learned senior counsel appearing
for the respondent nos. 2, 4 and 5, on the other hand, has
vehemently opposed this writ petition substantially on the
ground that the same seeking for a Writ of Habeas Corpus is not
maintainable as the custody of the two minor children with their
father, i.e. the respondent no.2, cannot be termed as illegal or
27
unlawful.
63. Ms. Arora would submit that both the minor children, as
on date, are well-settled at Chennai. They are being taken care of
in the best possible manner. They have been admitted in a very
good school at Chennai. Both the minor children are now well-
settled and to take them back to the USA all of a sudden will
take a very heavy toll on them both; physically and mentally.
64. According to Ms. Arora, when a party is seeking a
discretionary relief under Article 32 of the Constitution of India,
the court must look into the bona fide and the overall conduct of
such party.
65. The learned senior counsel would submit that it is the
petitioner who has brought around a situation whereby the
respondent no.2 is now not in a position to go back to the USA
and start a new life. The respondent no.2 has no work permit as
his employment has been terminated. It is the petitioner who is
responsible for the termination of services of the respondent no.2
from the company where he was serving earlier. She would
submit that, as on date, if the respondent no.2-father is asked to
go back to the USA with his two minor children and if the
respondent no.2 is not in a position to settle down in the USA,
then he may have to come back to India. In such circumstances,
it would be too dangerous to leave behind both the minor
28
children all alone with their mother who is suffering from various
mental disorders. The argument of the learned senior counsel is
that in such circumstances why should the father be deprived of
his love and affection towards his own children and also
supervision.
66. It is submitted that it is always open for the petitioner-
mother to travel to India and spend some time with her minor
children rather than insisting that both the minor children
should come back to the USA.
67. The learned senior counsel submitted that it is a well-
settled position of law, more particularly, after the decision of
this Court in the case of Nithya Anand Ragh avan v. State
(NCT of Delhi) and another , (2017) 8 SCC 454, that the
paramount consideration in cases like the one on hand, should
be the welfare of the minor child – in respect of whom the
Habeas Corpus writ petition is preferred by one or the other
parent. The other considerations – like comity of courts; orders
passed by foreign courts having jurisdiction in the matter
regarding custody of a minor child; citizenship of the parents
and the child; the ‘intimate connect’; the manner in which the
child is brought in India, i.e. even if it is in breach of order of
competent court in foreign jurisdiction, cannot override the
consideration of child’s welfare, since it is the responsibility of a
29
court, which exercises parens patriae jurisdiction, to ensure that
the exercise of extraordinary writ jurisdiction is in the best
interest of the child, and the direction to return the child to a
foreign jurisdiction does not result in any physical, mental,
psychological, or other harm to the child.
68. The learned senior counsel would submit that if it is not in
the best interest and welfare of the minor child that he/she
should return to the foreign jurisdiction, and giving of such
direction would harm his/her interest in the welfare, the other
considerations and principles which may persuade this Court to
take a view in favour of directing the return of the minor child to
the foreign court jurisdiction shall stand relegated and the court
would not direct the return of the child to the place falling within
the jurisdiction of the foreign court.
69. In such circumstances referred to above, Ms. Arora, the
learned senior counsel appearing for the respondent nos. 2, 4
and 5 respectively prays that there being no merit in the present
writ petition, the same may be rejected.
ANALYSIS :
70. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only
question that falls for our consideration is, whether the
30
petitioner is entitled to any of the reliefs prayed for ?
PRINCIPLES OF LAW GOVERNING THE RIGHTS OF THE
PARTIES :
71. The Guardians and Wards Act, 1890, was primarily
enacted to consolidate the various Acts then in force keeping in
view the personal law of diverse communities in India. It,
however, did not encroach upon the jurisdiction of the Courts of
Wards and did not take away any powers vested in the High
Courts or the Supreme Court. A ‘minor’ under the Act has been
defined as a person who, under the provisions of the Indian
Majority Act, 1875, is to be deemed not to have attained his
majority. A ‘guardian’ has been defined as a person having the
care of the person of a minor or of his property or of both his
person and property. Section 6 of the Act provides that no
provision in the Act shall be construed to take away or derogate
from any power to appoint a guardian of a minor's person or
property, or both, which is valid by the law to which the minor is
subject. Section 7 gives power to the Court that if it is satisfied
that it is for the welfare of a minor that an order should be
made, it may make an order appointing a guardian of his person
or property, or both, or declaring a person to be such a
guardian. Section 8 lays down that no order under Section 7 will
be made except on the application of the person desirous of
31
being, or claiming to be, the guardian of the minor or any
relative or friend of the minor or the Collector of the district in
which the minor ordinarily resides or in which he has property
or the Collector having authority with respect to the class to
which the minor belongs. Section 9 deals with the territorial
jurisdiction of the court. Section 10 lays down the manner in
which an application is to be made and what is to be stated in
the application. Section 11 provides for the procedure on
admission of such an application. Section 12 gives power to the
court to make interlocutory order for production of a minor and
interim protection of his person and property. Section 17 enjoins
upon the court to have due regard to the personal law of the
minor and specially take note of the circumstances which point
towards the welfare of the minor in either appointing a guardian
or declaring a guardian. If the minor is old enough to form an
intelligent preference, the court may be justified to consider that
preference also in coming to the final conclusion. Further, no
person can be appointed as a guardian against his own will.
72. The Hindu Minority and Guardianship Act, 1956 was
enacted as a law complementary to the Guardians and Wards
Act, 1890. This defines a ‘minor’ to be a person who has not
completed the age of eighteen years. ‘Guardian’ has been defined
as a person having the care of the person of a minor or of his
32
property or of both his person and property and includes - (i) a
natural guardian, (ii) a guardian appointed by the will of the
minor's father or mother, (iii) a guardian appointed or declared
by a Court, and (vi) a person empowered to act as such by or
under any enactment relating to any court of wards. ‘Natural
guardian’, according to this Act, means any of the guardians
mentioned in Section 6. Section 6 says that the natural
guardians of a Hindu minor, in respect of the minor's person as
well as in respect of the minor's property (excluding his or her
undivided interest in the joint family property) are - (a) in the
case of a boy or an unmarried girl, the father, and after him, the
mother, provided that the custody of a minor who has not
completed the age of five years shall ordinarily be with the
mother. Section 8 lays down that the natural guardian of a
Hindu minor has power, subject to the provisions of this section,
to do all acts which are necessary or reasonable and proper for
the benefit of the minor or for the realization, protection or
benefit of the minor's estate but the guardian can, in no case,
bind the minor by a personal covenant. Sub -section (5) of
Section 8 lays down that the Guardians and Wards Act, 1890,
shall apply in certain circumstances. Section 13 of the Act lays
down that in the appointment or declaration of any person as
guardian of Hindu minor by a Court, the welfare of the minor
33
shall be the paramount consideration. Indeed sub-section (2) of
Section 13 lays down that no person shall be entitled to the
guardianship by virtue of the provisions of the Act or of any law
relating to guardianship in marriage among Hindus, if the Court
is of opinion that his or her guardianship will not be for the
welfare of the minor. This section is complementary to Section
17 of the Guardians and Wards Act, 1890 which lays down that
in appointing or declaring the guardian of a minor the Court
shall be guided by what, consistently with the law to which the
minor is subject, appears in the circumstances to be for the
welfare of the minor.
73. A mere reading of the provisions of the two Acts referred to
above makes it obvious that the welfare of the minor
predominates to such an extent that the legal rights of the
persons claiming to be the guardians or claiming to be entitled to
the custody will play a very insignificant role in the
determination by the court.
74. Ms. Arora does not really contest the above proposition.
What she contends is that the father being the natural guardian
of his two minor children, the custody of the father cannot be
termed as illegal or unlawful restraint on the minor. In that
context no writ of Habeas Corpus can issue. Her contention is
34
that before a writ of Habeas Corpus can issue, it has to be
shown that there is either unlawful detention or custody or there
is imminent or serious danger to the person detained,
particularly if he or she is minor.
WRIT OF HABEAS CORPUS :
75. In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue
which should be taken into consideration is as to whether from
the facts of the case, it can be stated that the custody of the
child is illegal.
76. The writ of Habeas Corpus has always been given due
signification as an effective method to ensure release of the
detained person from prison. In P. Ramanatha Aiyar's Law
Lexicon (1997 edition), while defining ‘habeas corpus’, apart from
other aspects, the following has been stated :
“The ancient prerogative writ of habeas corpus takes
its name from the two mandatory words habeas.
corpus, which it contained at the time when it, in
common with all forms of legal process, was framed in
Latin. The general purpose of these writs, as their
name indicates, was to obtain the production of an
individual.”
77. In Secretary of State for Home Affairs v . O'Brien
reported in (1923) AC 603 (609), it has been observed that it is
perhaps the most important writ known to the constitutional law
35
of England, affording as it does a swift and imperative remedy in
all cases of illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third year
of Edward I. It has through the ages been jealously maintained
by the Courts of Law as a check upon the illegal usurpation of
power by the Executive at the cost of the liege.
78. The writ of Habeas Corpus is a prerogative writ and an
extraordinary remedy. It is a writ of right and not a writ of
course and may be granted only on reasonable ground or
probable cause being shown, as held by this Court in Mohd.
Ikram Hussain v. State of Uttar Pradesh and others, AIR
1964 SC 1625 and Kanu Sanyal v . District Magistrate,
Darjeeling, (1973) 2 SCC 674. The observations made by a
Constitution Bench in the case of Kanu Sanyal (supra) with
regard to the nature and scope of a writ of Habeas Corpus are
being extracted below :
“4. It will be seen from this brief history of the writ of
habeas corpus that it is essentially a procedural writ. It
deals with the machinery of justice, not the substantive
law. The object of the writ is to secure release of a
person who is illegally restrained of his liberty. The
writ is, no doubt, a command addressed to a person
who is alleged to have another person unlawfully in his
custody requiring him to bring the body of such person
before the Court, but the production of the body of the
person detained is directed in order that the
circumstances of his detention may be inquired into, or
36
to put it differently, “in order that appropriate judgment
be rendered on judicial enquiry into the alleged
unlawful restraint”. The form of the writ employed is
“We command you that you have in the King’s Bench
Division of our High Court of Justice-immediately after
the receipt of this our writ, the body of A.B. being taken
and detained under your custody-together with the day
and cause of his being taken and detained to undergo
and receive all and singular such matters and things
as our court shall then and there consider of concerning
him in this behalf“. The italicized words show that the
writ is primarily designed to give a person restrained of
his liberty a speedy and effective remedy for having
the legality of his detention enquired into and
determined and if the detention is found to be
unlawful, having himself discharged and freed from
such restraint. The most characteristic element of the
writ is its peremptoriness and, as pointed out by Lord
Halsbury, L.C. in Cox v. Hakes (supra), “the essential
and leading theory of the whole procedure is the
immediate determination of the right to the applicant’s
freedom and his release, if the detention is found to be
unlawful. That is the primary purpose of the writ; that
is its substance and end.”
79. The exercise of the extraordinary jurisdiction for issuance
of a writ of Habeas Corpus would, therefore, be seen to be
dependent on the jurisdictional fact where the applicant
establishes a prima facie case that the detention is unlawful. It is
only where the aforementioned jurisdictional fact is established
that the applicant becomes entitled to the writ as of right.
80. The object and scope of a writ of Habeas Corpus in the
context of a claim relating to the custody of a minor child fell for
the consideration of this Court in Nithya Anand Ragh avan
(supra) and it was held that the principal duty of the court in
37
such matters should be to ascertain whether the custody of the
child is unlawful and illegal and whether the welfare of the child
requires that his present custody should be changed and the
child be handed over to the care and custody of any other
person.
81. Taking a similar view in the case of Syed Saleemuddin v.
Dr. Rukhsana and others , (2001) 5 SCC 247, it was held by
this Court that in a Habeas Corpus petition seeking transfer of
custody of a child from one parent to the other, the principal
consideration for the court would be to ascertain whether the
custody of the child can be said to be unlawful or illegal and
whether the welfare of the child requires that the present
custody should be changed. It was stated thus :
“11…it is clear that in an application seeking a writ of
Habeas Corpus for custody of minor children the
principal consideration for the Court is to ascertain
whether the custody of the children can be said to be
unlawful or illegal and whether the welfare of the
children requires that present custody should be
changed and the children should be left in care and
custody of somebody else. The principle is well settled
that in a matter of custody of a child the welfare of the
child is of paramount consideration for the court…”
82. The question of maintainability of a Habeas Corpus
petition under Article 226 of the Constitution of India for the
custody of a minor was examined by this Court in Tejaswini
38
Gaud and others v . Shekhar Jagdish Prasad Tewa ri and
others, (2019) 7 SCC 42, and it was held that the petition would
be maintainable where the detention by parents or others is
found to be illegal and without any authority of law and the
extraordinary remedy of a prerogative writ of Habeas Corpus can
be availed in exceptional cases where the ordinary remedy
provided by the law is either unavailable or ineffective. The
observations made in the judgment in this regard are as follows :
“14. Writ of habeas corpus is a prerogative process for
securing the liberty of the subject by affording an
effective means of immediate release from an illegal or
improper detention. The writ also extends its influence
to restore the custody of a minor to his guardian when
wrongfully deprived of it. The detention of a minor by a
person who is not entitled to his legal custody is
treated as equivalent to illegal detention for the
purpose of granting writ, directing custody of the minor
child. For restoration of the custody of a minor from a
person who according to the personal law, is not his
legal or natural guardian, in appropriate cases, the writ
court has jurisdiction.
x x x x
19. Habeas corpus proceedings is not to justify or
examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of
the child is addressed to the discretion of the court.
Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in
the circumstances of the particular case, ordinary
remedy provided by the law is either not available or is
ineffective; otherwise a writ will not be issued. In child
custody matters, the power of the High Court in
granting the writ is qualified only in cases where the
detention of a minor by a person who is not entitled to
39
his legal custody. In view of the pronouncement on the
issue in question by the Supreme Court and the High
Courts, in our view, in child custody matters, the writ of
habeas corpus is maintainable where it is proved that
the detention of a minor child by a parent or others
was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies
only under the Hindu Minority and Guardianship Act or
the Guardians and Wards Act as the case may be. In
cases arising out of the proceedings under th e
Guardians and Wards Act, the jurisdiction of the court
is determined by whether the minor ordinarily resides
within the area on which the court exercises such
jurisdiction. There are significant differences between
the enquiry under the Guardians and Wards Act and
the exercise of powers by a writ court which is of
summary in nature. What is important is the welfare of
the child. In the writ court, rights are determined only
on the basis of affidavits. Where the court is of the view
that a detailed enquiry is required, the court may
decline to exercise the extraordinary jurisdiction and
direct the parties to approach the civil court. It is only in
exceptional cases, the rights of the parties to the
custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas
corpus.”
83. In the case of Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC
322, where the custody of a minor child was being claimed by
the father being the natural parent from the maternal
grandmother, the mother having died in child birth, it was held
that taking proper care and attention in upbringing of the child
is an important factor for granting custody of child, and on facts,
the child having been brought up by the grandmother since her
infancy and having developed emotional bonding, the custody of
40
the child was allowed to be retained by the maternal
grandmother. While considering the competing rights of natural
guardianships vis-a-vis the welfare of the child, the test for
consideration by the Court was held to be; what would best serve
the welfare and interest of the child. Referring to the earlier
decisions in Sumedha Nagpal v . State of Delhi, (2000) 9 SCC
745; Rosy Jacob v. Jacob A. Chakramakkal , (1973) 1 SCC
840; Elizabeth Dinshaw v. Arvand M. Dinshaw, (supra) and
Muthuswami Chettiar v . K.M. Chinna Muthuswami
Moopanar, AIR 1935 Mad 195, it was also held that the welfare
of child prevails over the legal rights of the parties while deciding
the custody of minor child. The observations mad e in the
judgment in this regard are as follows :
“14. The question for our consideration is, whether in
the present scenario would it be proper to direct the
appellant to hand over the custody of the minor child
Anagh to the respondent.
15. Under the Guardians and Wards Act, 1890, the
father is the guardian of the minor child until he is
found unfit to be the guardian of the minor female
child. In deciding such questions, the welfare of the
minor child is the paramount consideration and such a
question cannot be decided merely based upon the
rights of the parties under the law. (See Sumedha
Nagpal vs. State of Delhi.” (2000) 9 SCC 745 (SCC p.
747, paras 2 & 5).
84. In Rosy Jacob v. Jacob A. Chakramakkal (supra), this
Court has observed that :
41
“7…the principle on which the court should decide the
fitness of the guardian mainly depends on two factors:
(i) the father’s fitness or otherwise to be the guardian,
and (ii) the interests of the minors.”
85. This Court considering the welfare of the child also stated
that : (SCC p. 855, para 15)
“15….The children are not mere chattels: nor are they
mere playthings for their parents. Absolute right of
parents over the destinies and the lives of their
children has, in the modern changed social conditions,
yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced
manner to be useful members of the society….”
86. In Elizabeth Dinshaw (supra), this Court has observed
that whenever a question arises before a court pertaining to the
custody of the minor child, the matter is to be decided not on
consideration of the legal rights of the parties but on the sole
and predominant criterion of what would best serve the interest
and welfare of the child.
87. The question as to how the court would determine what is
best in the interest of the child was considered In Re: McGrath
(Infants), [1893] 1 Ch. 143 C.A., and it was observed by Lindley
L.J., as follows :
“…The dominant matter for the consideration of the
Court is the welfare of the child. But the welfare of a
child is not to be measured by money only, nor by
physical comfort only. The word welfare must be taken
in its widest sense. The moral and religious welfare of
the child must be considered as well as its physical
42
well-being. Nor can the ties of affection be
disregarded.”
88. The issue as to the welfare of the child again arose In re
“O” (An Infant), [1965] 1 Ch. 23 C.A., where Harman L.J.,
stated as follows :
“It is not, I think, really in dispute that in all cases the
paramount consideration is the welfare of the child; but
that, of course, does not mean you add up shillings
and pence, or situation or prospects, or even religion.
What you look at is the whole background of the child’s
life, and the first consideration you have to take into
account when you are looking at his welfare is : who
are his parents and are they ready to do their duty?”
89. The question as to what would be the dominating factors
while examining the welfare of a child was considered in Walker
v. Walker & Harrison, 1981 New Ze Recent Law 257 and it was
observed that while the material considerations have their place,
they are secondary matters. More important are stability and
security, loving and understanding care and guidance, and
warm and compassionate relationships which are essential for
the development of the child’s character, personality and talents.
It was stated as follows :
“Welfare is an all-encompassing word. It includes
material welfare; both in the sense of adequacy of
resources to provide a pleasant home and a
comfortable standard of living and in the sense of an
adequacy of care to ensure that good health and due
personal pride are maintained. However, while
material considerations have their place they are
secondary matters. More important are the
43
stability and the securit y, the loving and
understanding care and guidance, the warm and
compassionate relationships that are essential for the
full development of the child’s own character,
personality and talents.”
90. In the context of consideration of an application by a
parent seeking custody of a child through the medium of a
Habeas Corpus proceeding, it has been stated in American
Jurisprudence, 2nd Edn. Vol. 39 as follows :
“…An application by a parent, through the medium of a
habeas corpus proceeding, for custody of a child is
addressed to the discretion of the court, and custody
may be withheld from the parent where it is made
clearly to appear that by reason of unfitness for the
trust or of other sufficient causes the permanent
interests of the child would be sacrificed by a change of
custody. In determining whether it will be for the best
interest of a child to award its custody to the father or
mother, the court may properly consult the child, if it
has sufficient judgment.”
91. Thus, it is well established that in issuing the writ of
Habeas Corpus in the case of minors, the jurisdiction which the
Court exercises is an inherent jurisdiction as distinct from a
statutory jurisdiction conferred by any particular provision in
any special statute. In other words, the employment of the writ
of Habeas Corpus in child custody cases is not pursuant to, but
independent of any statute. The jurisdiction exercised by the
court rests in such cases on its inherent equitable powers and
exerts the force of the State, as parens patriae, for the protection
44
of its minor ward, and the very nature and scope of the inquiry
and the result sought to be accomplished call for the exercise of
the jurisdiction of a court of equity. The primary object of a
Habeas Corpus petition, as applied to minor children, is to
determine in whose custody the best interests of the child will
probably be advanced. In a Habeas Corpus proceeding brought
by one parent against the other for the custody of their child, the
court has before it the question of the rights of the parties as
between themselves, and also has before it, if presented by the
pleadings and the evidence, the question of the interest which
the State, as parens patriae, has in promoting the best interests
of the child.
92. The general principle governing the award of custody of a
minor is succinctly stated in the following words in Halsbury's
Laws of England, Fourth Edition, Vol. 24, Article 511 at page
217 :
“… Where in any proceedings before any court the
custody or upbringing of a minor is in question, then, in
deciding that question, the court must regard the
minor's welfare as the first and paramount
consideration, and may not take into consideration
whether from any other point of view the father's claim
in respect of that custody or upbringing is superior to
that of the mother, or the mother's claim is superior to
that of the father.”
45
93. In the American Jurisprudence, Vol. 39, Second Edition,
Para 148 at pages 280-281, the same principle is enunciated in
the following words :
“..... a court is not bound to deliver a child into the
custody of any claimant or of any person, but should,
in the exercise of a sound discretion, after careful
consideration of the facts, leave it in such custody as
its welfare at the time appears to require.”
94. In the footnote 14 at page 281, the following extracts from
two American cases are set-out which also emphasise this
point :
“The employment of the forms of habeas corpus in a
child custody case is not for the purpose of testing the
legality of a confinement or restraint as contemplated
by the ancient common law writ, or by statute, but the
primary purpose is to furnish a means by which the
court, in the exercise of its judicial discretion, may
determine what is best for the welfare of the child, and
the decision is reached by a consideration of the
equities involved in the welfare of the child, against
which the legal rights of no one, including the parents,
are allowed to militate.” Howarth v. Northcott, 152
Conn 460, 208 A 2d and 540, 17 ALR3d 758.
PRECEDENTS ON THE SUBJECT :
95. As Mr. Jauhar, the learned counsel appearing for the
petitioner, has placed strong reliance on the decision of this
Court in the case of V. Ravi Chandran (supra), we must look
into the same. This Court, in V. Ravi Chandran (supra), held as
follows :
46
“29. While dealing with a case of custody of a child
removed by a parent from one country to another in
contravention of the orders of the Court where the
parties had set up their matrimonial home, the Court in
the country to which the child has been removed must
first consider the question whether the Court could
conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily order
a parent to return custody of the child to the country
from which the child was removed and all aspects
relating to the child’s welfare be investigated in a Court
in his own country. Should the Court take a view that
an elaborate enquiry is necessary, obviously the Court
is bound to consider the welfare and happiness of the
child as the paramount consideration and go into all
relevant aspects of welfare of the child including
stability and security, loving and understanding care
and guidance and full development of the child’s
character, personality and talents. While doing so, the
order of a foreign Court as to his custody may be given
due weight; the weight and persuasive effect of a
foreign judgment must depend on the circumstances of
each case.
30. However, in a case where the Court decides to
exercise its jurisdiction summarily to return the child to
his own country, keeping in view the jurisdiction of the
Court in the native country which has the closest
concern and the most intimate contact with the issues
arising in the case, the Court may leave the aspects
relating to the welfare of the child to be investigated by
the Court in his own native country as that could be in
the best interests of the child. The indication given in
McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942
(PC)] that there may be cases in which it is proper for a
Court in one jurisdiction to make an order directing that
a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the
care of the child on the ground that such an order is in
the best interests of the child has been explained in L
(Minors), In re [(1974) 1 WLR 250 : (1974) 1 All ER 913
(CA)] and the said view has been approved by this
Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar
view taken by the Court of Appeal in H. (Infants), In re
47
[(1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886
(CA)] has been approved by this Court in Elizabeth
Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13]”.
96. This Court then proceeded to consider the issue, whether
the facts of the case before it warranted an elaborate inquiry into
the question of custody of the minor and should the parties be
relegated to the said procedure before an appropriate forum in
India. This Court concluded in its judgment that it was not
necessary to relegate the parties to an elaborate procedure in
India. Its reasons are found in paras 32 to 35, which read as
follows :
“32. Admittedly, Adithya is an American citizen, born
and brought up in the United States of America. He has
spent his initial years there. The natural habitat of
Adithya is in the United States of America. As a matter
of fact, keeping in view the welfare and happiness of
the child and in his best interests, the parties have
obtained a series of consent orders concerning his
custody/parenting rights, maintenance, etc. from the
competent Courts of jurisdiction in America. Initially, on
18.4.2005, a consent order governing the issues of
custody and guardianship of minor Adithya was
passed by the New York State Supreme Court
whereunder the Court granted joint custody of the child
to the petitioner and Respondent 6 and it was
stipulated in the order to keep the other party informed
about the whereabouts of the child. In a separation
agreement entered into between the parties on
28.7.2005, the consent order dated 18.4.200 5
regarding custody of minor son Adithya continued.
33. In 8.9.2005 order whereby the marriage between
the petitioner and Respondent 6 was dissolved by the
New York State Supreme Court, again the child custody
48
order dated 18.4.2005 was incorporated. Then t he
petitioner and Respondent 6 agreed for modification of
the custody order and, accordingly, the Family Court of
the State of New York on 18.6.2007 ordered that the
parties shall share joint legal and physical custody of
the minor Adithya and, in this regard, a comprehensive
arrangement in respect of the custody of the child has
been made.
34. The fact that all orders concerning the custody of
the minor child Adithya have been passed by the
American Courts by consent of the parties shows that
the objections raised by Respondent 6 in the counter-
affidavit about deprivation of basic rights of the child
by the petitioner in the past; failure of the petitioner to
give medication to the child; denial of education to the
minor child; deprivation of stable environment to the
minor child; and child abuse are hollow and without
any substance. The objection raised by Respondent 6
in the counter-affidavit that the American Courts which
passed the order/decree had no jurisdiction and being
inconsistent with Indian laws cannot be executed in
India also prima facie does not seem to have any merit
since despite the fact that Respondent 6 has been
staying in India for more than two years, she has not
pursued any legal proceeding for the sole custody of
the minor Adithya or for declaration that the orders
passed by the American Courts concerning the custody
of minor child Adithya are null and void and without
jurisdiction. Rather it transpires from the counter-
affidavit that initially Respondent 6 initiated the
proceedings under the Guardians and Wards Act, 1890
but later on withdrew the same.
35. The facts and circumstances noticed above leave
no manner of doubt that merely because the child has
been brought to India by Respondent 6, the custody
issue concerning minor child Adithya does not deserve
to be gone into by the Courts in India and it would be
in accord with principles of comity as well as on facts
to return the child back to the United States of America
from where he has been removed and enable the
parties to establish the case before the Courts in the
native State of the child i.e. the United States of
49
America for modification of the existing custody orders.
There is nothing on record which may even remotely
suggest that it would be harmful for the child to be
returned to his native country.”
97. Despite the fact that the minor child Adithya had remained
in India for over two years, this Court concluded that it could not
be said that the he had developed his roots in India. This Court
directed the respondent mother to take the child, of her own, to
the USA and to report before the Family Court of the State of
New York. This Court also imposed the condition on the
petitioner that he shall bear all the travelling expenses of the
mother and the minor child and make arrange ments for their
residence in the USA till further orders are passed by the
competent Court. He was also directed to request the authorities
that the warrants issued against the mother be dropped and he
was directed not to file or pursue any criminal charge for
violation by the mother of the consent order in USA.
98. In Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC
450, the husband and wife both were of the Indian origin but the
husband became a resident and citizen of the UK. The parties
got married in India and had two daughters in the UK. The wife
had acquired the British citizenship and the British passport as
well. Both the parties were working for gain in the UK. The
parties started having some matrimonial problems, as a result of
50
which the wife came back to India with her two daughters. The
wife filed a petition under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955 seeking divorce in the Family Court,
Coimbatore. Subsequently, the husband filed a petition in the
High Court of Justice in the UK for making the children wards of
the Court. The High Court made the children wards of the Court
during their minority, or until further orders of the Court and
the wife was directed to return the children to the jurisdiction of
the foreign Court. As the wife failed to obey the orders of the
foreign Court, the husband filed a writ petition of Habeas Corpus
seeking production of his children and their return to the UK, in
the Madras High Court. The High Court dismissed the petition.
This Court discussed the law on the custody of the children and
observed the following :
“46. The principle of the comity of Courts is essentially
a principle of self-restraint, applicable when a foreign
Court is seized of the issue of the custody of a child
prior to the domestic Court. There may be a situation
where the foreign Court though seized of the issue does
not pass any effective or substantial order or direction.
In that event, if the domestic Court were to pass an
effective or substantial order or direction prior in point
of time then the foreign Court ought to exercise self-
restraint and respect the direction or order of the
domestic Court (or vice versa), unless there are very
good reasons not to do so.
47. From a review of the above decisions, it is quite
clear that there is complete unanimity that the best
interests and welfare of the child are of paramount
importance. However, it should be clearly understood
51
that this is the final goal or the final objective to be
achieved — it is not the beginning of the exercise but
the end.
48. Therefore, we are concerned with two principles in
a case such as the present. They are:
(i) the principle of comity of Courts; and
(ii) the principle of the best interests and the welfare
of the child.
These principles have been referred to as “contrasting
principles of law” [Shilpa Aggarwal v. Aviral Mittal,
(2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192] but they
are not “contrasting” in the sense of one being the
opposite of the other but they are contrasting in the
sense of being different principles that need to be
applied in the facts of a given case.
49. What then are some of the key circumstances
and factors to be taken into consideration for reaching
this final goal or final objective? First, it must be
appreciated that the ‘most intimate contact’ doctrine
and the ‘closest concern’ doctrine of Surinder Kaur
Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 :
1984 SCC (Cri) 464 are very much alive and cannot be
ignored only because their application might be
uncomfortable in certain situations. It is not appropriate
that a domestic Court having much less intimate
contact with a child and having much less close
concern with a child and his or her parents (as against
a foreign Court in a given case) should take upon itself
the onerous task of determining the best interests and
welfare of the child. A foreign Court having the most
intimate contact and the closest concern with the child
would be better equipped and perhaps best suited to
appreciate the social and cultural milieu in which the
child has been brought up rather than a domestic
Court. This is a factor that must be kept in mind.
x x x x
52
52. What are the situations in which an interim or an
interlocutory order of a foreign Court may be ignored ?
There are very few such situations. It is of primary
importance to determine, prima facie, that the foreign
Court has jurisdiction over the child whose custody is
in dispute, based on the fact of the child being
ordinarily resident in the territory over which the
foreign Court exercises jurisdiction. If the foreign Court
does have jurisdiction, the interim or interlocutory order
of the foreign Court should be given due weight and
respect. If the jurisdiction of the foreign Court is not in
doubt, the ‘first strike’ principle would be applicable.
That is to say that due respect and weight must be
given to a substantive order prior in point of time to a
substantive order passed by another Court (foreign or
domestic).
53. There may be a case, as has happened in the
present appeal, where one parent invoke s the
jurisdiction of a Court but does not obtain any
substantive order in his or her favour and the other
parent invokes the jurisdiction of another Court and
obtains a substantive order in his or her favour before
the first Court. In such an event, due respect and
weight ought to be given to the substantive order
passed by the second Court since that interim or
interlocutory order was passed prior in point of time.
x x x x
55. Finally, this Court has accepted the view [L.
(Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913
(CA)] that in a given case, it might be appropriate to
have an elaborate inquiry to decide whether a child
should be repatriated to the foreign country and to the
jurisdiction of the foreign Court or in a given case to
have a summary inquiry without going into the merits
of the dispute relating to the best interests and welfare
of the child and repatriating the child to the foreign
country and to the jurisdiction of the foreign Court.”
53
99. Thus, it is evident that while the paragraph 49 referred to
above recognised the well-settled principle/doctrine of the ‘most
intimate contact’ and the ‘closest concern’ doctrine, the
paragraphs 47, 52 & 53 respectively emphasized the doctrine of
comity of Courts and the first strike principle. Even before
stating the aforesaid principles, in paragraph 47, the Court
observed that there is complete unanimity that the best interests
and welfare of the child are of paramount importance.
100. The Court allowed the appeal on the ground that the UK
Court had passed an effective and substantial order declaring
the children of the parties as wards of that Court and also that
the UK Court has the most intimate contact with the welfare of
the children.
101. In Nithya Anand Ragh avan (supra), this Court struck
altogether a different note and gave a new dimension. In that
case, the couple married on 30.11.2006 at Chennai and shifted
to the UK in the early 2007. Disputes between the spouses
arose. The wife having conceived in December 2008, came to
New Delhi in June 2009 and stayed with her parents and gave
birth to a girl child - Nethra on 07.08.2009 at Delhi. After the
husband arrived in India, the couple went back to the UK in
March, 2010 and following certain unsavoury events, the wife
and the daughter returned to India in August 2010. After
54
exchange of legal correspondence, the wife and her daughter
went back to London in December, 2011, and in January 2012
the daughter was admitted in a nursery in the UK. In December,
2012, the child was granted the UK citizenship and the husband
was also granted the UK citizenship in January 2013. They
bought a home in the UK to which they shifted their family. In
September, 2013 the child was admitted in a primary school in
the UK and she was around four years old. In July, 2 014 the
wife returned to India along with her daughter. She again
returned to the UK along with the child. Between late 2014 and
early 2015 the child became ill and was diagnosed with cardiac
disorder. On 02.07.2015, the wife returned to India with her
daughter due to the alleged violent behaviour of her husband.
On 16.12.2015, the wife filed a complaint against the husband
at the CAW Cell, New Delhi, and in spite of the notices to the
husband and her parents, neither of them appeared. The
husband filed a custody/wardship petition on 08.01.2016 in the
UK to seek return of the child. On 23.1.2016, he also filed a
Habeas Corpus petition in the Delhi High Court which was
allowed on 08.07.2016. The wife carried the case to this Court.
This Court strongly relied upon its earlier judgment in
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, which in
turn, referred to Mckee v. McKee, 1951 AC 352 : (1951) 1 All ER
55
942 (PC), where the Privy Council held that the order of the
foreign court would yield to the welfare of the child and that the
comity of courts demanded not its enforcement, but its grave
consideration. While taking note of the fact that India is not a
signatory to the Hague Convention of 1980, on the “Civil Aspects
of International Child Abduction”, this Court, inter alia, held as
under :
“40. … As regards the non-Convention countries, the
law is that the court in the country to which the child
has been removed must consider the question on merits
bearing the welfare of the child as of paramount
importance and reckon the order of the foreign court as
only a factor to be taken into consideration, unless the
court thinks it fit to exercise summary jurisdiction in the
interests of the child and its prompt return is for its
welfare. In exercise of summary jurisdiction, the court
must be satisfied and of the opinion that the
proceeding instituted before it was in close proximity
and filed promptly after the child was removed from
his/her native state and brought within its territorial
jurisdiction, the child has not gained roots here and
further that it will be in the child's welfare to return to
his native state because of the difference in language
spoken or social customs and contacts to which he/she
has been accustomed or such other tangible reasons.
In such a case the court need not resort to an elaborate
inquiry into the merits of the paramount welfare of the
child but leave that inquiry to the foreign court by
directing return of the child. Be it noted that in
exceptional cases the court can still refuse to issue
direction to return the child to the native state and more
particularly in spite of a pre-existing order of the foreign
court in that behalf, if it is satisfied that the child's
return may expose him to a grave risk of harm. This
means that the cour ts in India, within w hose
jurisdiction the minor has been brought must
“ordinarily” consider the question on merits, bearing in
mind the welfare of the child as of paramount
56
importance whilst reckoning the pre-existing order of
the foreign court if any as only one of the factors and
not get fixated therewith. In either situation—be it a
summary inquiry or an elaborate inquiry—the welfare
of the child is of paramount consideration. Thus, while
examining the issue the courts in India are free to
decline the relief of return of the child brought within its
jurisdiction, if it is satisfied that the child is now settled
in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the
child in an intolerable position or if the child is quite
mature and objects to its return. We are in respectful
agreement with the aforementioned exposition.”
102. This Court also relied upon the judgment in V. Ravi
Chandran (supra) and inter alia held that the role of the High
Court in examining the cases of custody of a minor is on the
touchstone of principle of parens patriae jurisdiction, as the
minor is within the jurisdiction of the court. It has held that the
High Court while dealing with the petition for issuance of Habeas
Corpus concerning a minor child in a given case, may direct
return of the child or decline to change the custody of the child
keeping in mind all the attending facts and circumstances
including the settled legal position discussed therein. It has
further added that the decision of the court, in each case, must
depend on the totality of the facts and circumstances of the case
brought before it while considering the welfare of the child which
is of paramount consideration and that the order of the foreign
court must yield to the welfare of the child and the remedy of
writ of Habeas Corpus cannot be used for mere enforcement of
57
the directions given by the foreign court against a person within
its jurisdiction and convert that jurisdiction into that of an
executing court. It has further observed that the writ petitioner
can take recourse to such other remedy as may be permissible in
law for enforcement of the order passed by the foreign court or
resort to any other proceedings as may be permissible in law
before the Indian Court for the custody of the child, if so advised.
This Court has disapproved paragraph 56 (a) to (d) in Surya
Vadanan (supra) which reads as follows:
“56. However, if there is a pre-existing order of a
foreign court of competent jurisdiction and the domestic
court decides to conduct an elaborate inquiry (as
against a summary inquiry), it must have special
reasons to do so. An elaborate inquiry should not be
ordered as a matter of course. While deciding whether
a summary or an elaborate inquiry should be
conducted, the dom estic court must take into
consideration:
(a) The nature and effect of the interim or interlocutory
order passed by the foreign court.
(b) The existence of special reasons for repatriating or
not repatriating the child to the jurisdiction of the
foreign court.
(c) The repatriation of the child does not cause any
moral or physical or social or cultural or psychological
harm to the child, nor should it cause any legal harm to
the parent with whom the child is in India. There are
instances where the order of the foreign court may
result in the arrest of the parent on his or her return to
the foreign country. [Arathi Bandi v. Bandi
58
Jagadrakshaka Rao, (2013) 15 SCC 790: (2014) 5 SCC
(Civ) 475]. In such cases, the domestic court is also
obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the
foreign court concerned or the domestic court
concerned, is also relevant. If the time gap is unusually
large and is not reasonably explainable and the child
has developed firm roots in India, the domestic court
may be well advised to conduct an elaborate inquiry.”
103. As regards (a) to (c) of paragraph 56 above, this Court
termed the same as tending to drift away from the exposition in
Dhanwanti Joshi (supra) and V. Ravi Chandran (supra) and
with regard to clause (d), the Court disagreed with the same. For
better appreciation, paragraphs 62, 63 and 66 respectively of the
report are extracted herein below :
“62. As regards clauses (a) to (c) above, the same, in
our view, with due respect, tend to drift away from the
exposition in Dhanwanti Joshi case, which has been
quoted with approval by a three-Judge Bench of this
Court in V. Ravi Chandran case. In that, the nature of
inquiry suggested therein inevitably recognises giving
primacy to the order of the foreign court on the issue of
custody of the minor. That has been explicitly negated
in Dhanwanti Joshi case. For, whether it is a case of a
summary inquiry or an elaborate i nquiry, the
paramount consideration is the interests and welfare of
the child. Further, a pre-existing order of a foreign court
can be reckoned only as one of the factor to be taken
into consideration. We have elaborated on this aspect
in the earlier part of this judgment.
63. As regards the fourth factor noted in clause (d) of
para 56, Surya Vadanan v. State of T.N., (2015) 5 SCC
450: (2015) 3 SCC (Civ) 94], we respectfully disagree
with the same. The first part gives weightage to the
59
“first strike” principle. As noted earlier, it is not relevant
as to which party first approached the court or so to
say “first strike” referred to in para 52 of the judgment.
Even the analogy given in para 54 regarding
extrapolating that principle to the courts in India, if an
order is passed by the Indian Court is inapposite. For,
the Indian Courts are strictly governed by the
provisions of the Guardians and Wards Act, 1890, as
applicable to the issue of custody of the minor within
its jurisdiction.
x x x x
66. The invocation of first strike principle as a
decisive factor, in our opinion, would undermine and
whittle down the wholesome principle of the duty of the
court having jurisdiction to consider the best interests
and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the
fact that there is already an order passed by a foreign
court in existence may not be so significant as it must
yield to the welfare of the child. That is only one of the
factors to be taken into consideration. The interests
and welfare of the child are of paramount
consideration. The principle of comity of courts as
observed in Dhanwanti Joshi v. Madhav Unde, (1998)
1 SCC 112, in relation to non-Convention countries is
that the court in the country to which the child is
removed will consider the question on merits bearing
the welfare of the child as of paramount importance
and consider the order of the foreign court as only a
factor to be taken into consideration. While considering
that aspect, the court may reckon the fact that the child
was abducted from his or her country of habitual
residence but the court's overriding consideration must
be the child's welfare.”
104. Finally this Court, in Nithya Anand Raghavan (supra),
concluded as under :
“69. We once again reiterate that the exposition in
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 is
a good law and has been quoted with approval by a
three-Judge Bench of this Court in V. Ravi Chandran.
We approve the view taken in Dhanwanti Joshi v.
Madhav Unde, (1998) 1 SCC 112, inter alia, in para 33
60
that so far as non-Convention countries are concerned,
the law is that the court in the country to which the
child is removed while considering the question must
bear in mind the welfare of the child as of paramount
importance and consider the order of the foreign court
as only a factor to be taken into consideration. The
summary jurisdiction to return the child be exercised in
cases where the child had been re moved from its
native land and removed to another country where,
may be, his native language is not spoken, or the child
gets divorced from the social customs and contacts to
which he has been accustomed, or if its education in
his native land is interrupted and the child is being
subjected to a foreign system of education, for these
are all acts which could psychologically disturb the
child. Again the summary jurisdiction be exercised only
if the court to which the child has been removed is
moved promptly and quickly. The overriding
consideration must be the interests and welfare of the
child.”
105. The essence of the judgment in Nithya Anand Raghav an
(supra) is that the doctrines of comity of courts, intimate
connect, orders passed by foreign courts having jurisdiction in
the matter regarding the custody of the minor child, the
citizenship of the parents and the child, etc. cannot override the
consideration of the best interest and the welfare of the child,
and that the direction to return the child to the foreign
jurisdiction must not result i n any physical, mental,
psychological, or other harm to the child.
106. As observed by this Court in Vivek Singh v. Romani
Singh, (2017) 3 SCC 231, in cases of this nature, where a child
feels tormented because of the strained relations between her
61
parents and ideally needs the company of both of them, it
becomes, at times, a difficult choice for the court to decide as to
whom the custody should be given. However, even in such a
dilemma, the paramount consideration i s the welfare of the
child. However, at times the prevailing circumstances are so
puzzling that it becomes difficult to weigh the conflicting
parameters and decide on which side the balance tilts.
FINAL ANALYSIS :
107. Keeping in mind the principles of law as explained by this
Court in Nithya Anand Raghavan (supra), we now proceed to
consider, whether it will be in the paramount interest and
welfare of both the minor children to go back to the USA ? To
put it in other words, whether we should direct the respondent
no.2 to go back to the USA with both the minor children and
abide by the shared parenting plan as ordered by the Court of
Common Pleas, Division of Domestic Relations, Cuyahoga
County, Ohio, or handover the custody of both the minor
children to the petitioner-mother ?
108. We take notice of the following circumstances emerging
from the materials on record so far as the two minor children are
concerned :
62
(1) Both the minor children are residents of the USA.
(2) The son is a natural citizen and the daughter is a
permanent resident of the USA.
(3) Both the children have been brought up in the social
and cultural milieu of the USA. They are accustomed to the
lifestyle, language, customs, rules and regulations, etc. of
that country.
(4) The children are residents of the USA. One of whom
is a natural citizen and will have better future prospects if
goes back to the USA.
As observed by this Court in the case of Vasudha Sethi
and others v. Kiran V. Bhaskar and another, (2022)
SCC OnLine SC 43, the natural process of grooming in the
environment of the native country is indispensable for
comprehensive development. We quote the relevant
observations made by this Court in the case of Vivek
Singh (supra) thus :
“9. We have given our utmost serious consideration to
the respective submissions which a case of this nature
deserves to be given. In cases of this nature, where a
child feels tormented because of the strained relations
between her parents and ideally needs the company
of both of them, it becomes, at times, a difficult choice
for the court to decide as to whom the custody should
be given. No doubt, paramount consideration is the
63
welfare of the child. However, at times the prevailing
circumstances are so puzzling that it becomes difficult
to weigh the conflicting parameters and decide on
which side the balance tilts.
10. The Hindu Minority and Guardianship Act, 1956
lays down the principles on which custody disputes
are to be decided. Section 7 of this Act empowers the
Court to make order as to guardianship. Section 17
enumerates the matters which need to be considered
by the Court in appointing guardian and among
others, enshrines the principle of welfare of the minor
child. This is also stated very eloquently in Section 13
which reads as under :
“13. Welfare of minor to be paramount
consideration. (1) In the appointment or
declaration of any person as guardian of a
Hindu minor by a court, the welfare of the minor
shall be the paramount consideration.
(2) No person shall be entitled to the
guardianship by virtue of the provisions of this
Act or of any law relating to guardianship in
marriage among Hindus, if the court is of opinion
that his or her guardianship will not be for the
welfare of the minor.”
11. This Court in the case of Gaurav Nagpal v.
Sumedha Nagpal stated in detail, the law relating to
custody in England and America and pointed out that
even in those jurisdictions, welfare of the minor child
is the first and paramount consideration and in order
to determine child custody, the jurisdiction exercised
by the Court rests on its own inherent equality powers
where the Court acts as 'Parens Patriae'. The Court
further observed that various statutes give legislative
recognition to the aforesaid established principles. The
Court explained the expression 'welfare', occurring in
Section 13 of the said Act in the following manner :
“51. The word “welfare” used in Section 13 of the
Act has to be construed literally and must be
taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the
court as well as its physical well-being. Though
the provisions of the special statutes which
64
govern the rights of the parents or guardians may
be taken into consideration, there is nothing
which can stand in the w ay of the court
exercising its parens patriae jurisdiction arising in
such cases.
52. The trump card in the appellant's argument is
that the child is living since long with the father.
The argument is attractive. But the same
overlooks a very significant factor. By flouting
various orders, leading even to initiation of
contempt proceedings, the appellant has
managed to keep custody of the child. He cannot
be a beneficiary of his own wrongs. The High
Court has referred to these aspects in detail in
the impugned judgments.”
12. We understand that the aforesaid principle is
aimed at serving twin objectives. In the first instance,
it is to ensure that the child grows and develops in the
best environment. The best interest of the child has
been placed at the vang uard of family/custody
disputes according the optimal growth and
development of the child primacy over ot her
considerations. The child is often left to grapple with
the breakdown of an adult institution. While the
parents aim to ensure that the child is least affected
by the outcome, the inevitability of the uncertainty
that follows regarding the child’s growth lingers on till
the new routine sinks in. The effect of separation of
spouses, on children, psychologically, emotionally and
even to some extent physically, spans from negligible
to serious, which could be insignificant to noticeably
critical. It could also have effects that are more
immediate and transitory to long lasting thereby
having a significantly negative repercussion in the
advancement of the child. While these effects don’t
apply to every child of a separated or divorced couple,
nor has any child experienced all these effects, the
deleterious risks of maladjustme nt remains the
objective of the parents to evade and the court’s intent
to circumvent. This right of the child is also based on
individual dignity.
13. Second justification behind the 'welfare' principle
is the public interest that stand served with the
optimal growth of the children. It is well recognised
65
that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric has
been recognised in many international covenants,
which are adopted in this country as well. Child-
centric human rights jurisprudence that has been
evolved over a period of time is founded on the
principle that public good demands proper growth of
the child, who are the future of the nation. It has been
emphasised by this Court also, time and again,
following observations in Bandhua Mukti Morcha vs.
Union of India & Ors. :
“4. The child of today cannot develop to be a
responsible and productive member of tomorrow's
society unless an environment which is conducive
to his social and physical health is assured to
him. Every nation, developed or developing, links
its future with the status of the child. Childhood
holds the potential and also sets the limit to the
future development of the society. Children are
the greatest gift to humanity. Mankind has the
best hold of itself. The parents themselves live for
them. They embody the joy of life in them and in
the innocence relieving the fatigue and drudgery
in their struggle of daily life. Parents regain peace
and happiness in the company of the children.
The children signify eternal optimism in the
human being and always provide the potential for
human development. If the children are better
equipped with a broader human output, the
society will feel happy with them. Neglecting the
children means loss to the society as a whole. If
children are deprived of their childhood —
socially, economically, physically and mentally —
the nation gets deprived of the potential human
resources for social progress, economic
empowerment and peace and order, the social
stability and good citizenry. The Found ing
Fathers of the Constitution, therefore, have
emphasised the importance of the role of the child
and the need of its best development.”
14. Same sentiments were earlier expressed in Rosy Jacob
vs. Jacob A. Chakramakkal in the following words:
“15. ...The children are not mere chattels : nor are
they mere play-things for their parents. Absolute
66
right of parents over the destinies and the lives of
their children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings so that they may grow
up in a normal balanced manner to be useful
members of the society...”
15. It hardly needs to be emphasised that a proper
education encompassing skill development, recreation
and cultural activities has a positive impact on the
child. The children are the most important human
resources whose development has a direct impact on
the development of the nation, for the child of today
with suitable health, sound education an d
constructive environment is the productive key
member of the society. The present of the child links to
the future of the nation, and while the children are the
treasures of their parents, they are the assets who
will be responsible for governing the nation. The tools
of education, environment, skill and health shape the
child thereby moulding the nation with the child
equipped to play his part in the different spheres
aiding the public and contributing to economic
progression. The growth and advancement of the child
with the personal interest is accompanied by a
significant public interest, which arises because of the
crucial role they play in nation building.
x x x x
17. While coming to the conclusion that the
respondent as mother was more appropriate to have
the custody of the child and u nder the given
circumstances the responden t herein was fully
competent to take care of the child, the High Court
proceeded with the following discussion:
“31. The role of the mother in the development of
a child's personality can never be doubted. A
child gets the best protection through the mother.
It is a most natural thing for any child to grow up
in the company of one's mother. The company of
the mother is the most natural thing for a child.
Neither the father nor any other person can give
the same kind of lover, affection, care and
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sympathies to a child as that of a mother. The
company of a mother is mo re valuable to a
growing up female child unless there are
compelling and justifiable reasons, a child should
not be deprived of the company of the mother.
The company of the mother is always in the
welfare of the minor child.
32. It may be noticed that the stand of the
appellant is that since August 04, 2010 she had
been pursuing for the custody of her child. She
had also visited the police station and
approached the CAW Cell. It is also admitted
position that within 22 days, i.e., on August 26,
2010 the petition for the grant of custody of child
was filed by her. Had she abandoned the child of
her own s he would not have pursued
continuously thereafter for getting the custody of
the child. Even she had requested the learned
Principal Judge, Family Court for interim custody
of the child which was given to her in the form of
visitation rights thrice in a month and she and
her family had been meeting the child during that
period. After filing the appeal, the appellant has
been taking the interim custody of the child as is
stated above. In these circumstances, it cannot be
said that the appellant has not care for the child.
Further, respondent is any army Officer. During
the course of his service he will be also getting
non- family stations and it will be difficult for him
to keep the child. Further, even though as per him
his parents are looking after the child but when
the natural mother is there and has knocked the
door of the court without any delay and has all
love and affection for the child and is willing to do
her duty with all love and affection and since the
birth of the child she has been keeping the child.
In these circumstances, she should not be
deprived of her right especially considering the
tender age and child being a girl child. The
grandparents cannot be a substitute for natural
mother. There is no substitute for mother’s love in
this world. The grandparents are old. Old age has
its own problems. Considering the totality of facts
and circumstances, the welfare of the child lies
with the mother, i.e, appellant who is educated,
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working and earning a good salary and after
school hours has ample time to spend with the
child. In these circumstances, impugned order is
set aside and the request of the appellant for the
grant of custody of the said child to her being
natural mother is allowed and the appellant is
also appointed as guardian of her child being a
natural guardian/mother.”
18. The aforesaid observations, contained in para 31
of the order of the High Court extracted above, apply
with greater force today, when Saesha is 8 years' old
child. She is at a crucial phase when there is a major
shift in thinking ability which may help her to
understand cause and effect better and think about
the future. She would need regular and frequent
contact with each parent as well as shielding from
parental hostility. Involvement of both parents in her
life and regular school attendance are absolutely
essential at this age for her personality development.
She would soon be able to establish her individual
interests and preferences, shaped by her own
individual personality as well as experience. Towards
this end, it also becomes necessary for parents to
exhibit model good behaviour and set healthy and
positive examples as much and as often as possible. It
is the age when her emotional development may be
evolving at a deeper level than ever before. In order to
ensure that she achieves stability and maturity in her
thinking and is able to deal with complex emotions, it
is necessary that she is in the company of her mother
as well, for some time. This Court cannot turn a blind
eye to the fact that there have been strong feelings of
bitterness, betrayal, anger and distress between the
appellant and the respondent, where each party feels
that they are ‘right’ in many of their views on issues
which led to separation. The intensity of negative
feeling of the appellant towards the respondent would
have obvious effect on the psyche of Saesha, who has
remained in the company of her father, to the
exclusion of her mother. The possibility of appellant's
effort to get the child to give up her own positive
perceptions of the other parent, i.e., the mother and
change her to agree with the appellant’s view point
cannot be ruled out thereby diminishing the affection
of Saesha towards h er mother. Obviously, the
69
appellant, during all this period, would not have said
anything about the positive traits of the respondent.
Even the matrimonial discord between the two parties
would have been understood by Saesha, as perceived
by the appellant. Psychologist term it as ‘The Parental
Alienation Syndrome’. It has at least two
psychological destructive effects:
(i) First, it puts the child squarely in the
middle of a contest of loyalty, a contest which
cannot possibly be won. The child is asked to
choose who is the preferred parent. No matter
whatever is the choice, the child is very likely to
end up feeling painfully guilty and confused. This
is because in the overwhelming majority of cases,
what the child wants and needs is to continue a
relationship with each parent, as independent as
possible from their own conflicts.
(ii) Second, the child is required to make a shift
in assessing reality. One parent is presented as
being totally to blame for all problems, and as
someone who is devoid of any posit ive
characteristics. Both of these assertions
represent one parent's distortions of reality.
19. The aforesaid discussion leads us to feel that
continuous company of the mother with Saesha, for
some time, is absolutely essential. It may also be
underlying that the notion that a child’s primary need
is for the care and love of its mother, where she has
been its primary care giving parent, is supported by a
vast body of psychological literature. Empirical
studies show that mother infant “bonding” begins at
the child’s birth and that infants as young as two
months old frequently show signs of distress when
the mother is replaced by a substitute caregiver. An
infant typically responds preferentially to the sound of
its mother’s voice by four weeks, actively demands
her presence and protests her absence by eight
months, and within the first year has formed a
profound and enduring attachment to her.
Psychological theory hypothesizes that the mother is
the center of an infant’s small world, his psychological
homebase, and that she “must continue to be so for
some years to come.” Developmental psychologists
believe that the quality and strength of this original
70
bond largely determines the child's later capacity to
fulfill her individual potential and to form attachments
to other individuals and to the human community.”
Thus, what has been explained by this Court as aforesaid
is the doctrine of Parental Alienation Syndrome, i.e. the efforts
made by one parent to get the child to give up his/her own
positive perceptions of the other parent and get him/her to agree
with their own viewpoint. It has two psychological destructive
effects :
(1) It puts the child in the middle of a loyalty
contest, which cannot possibly won by any parent;
(2) It makes the child to assess the reality, thereby
requiring to blame either parent who is supposedly
deprived of positive traits.
The intent of the court should be to circumvent such ill
effects.
109. The minor daughter has a remarkable high IQ. She has
been identified to be a gifted child. In such circumstances, both
the minor children were admitted in a special school meant for
children with such remarkably high IQ in the USA. Such schools
in the USA are specialized in providing education to the gifted
children which, ultimately, helps in the overall development of
such children. The special education ultimately enhances the
71
potential of such children. Both the children in the present case
have better prospects of getting refined education that may
ultimately enhance their potential they already possess and are
already accustomed to and comfortable with.
110. Both the minor children, in the case on hand, have already
been enrolled in the school in the USA. Therefore, if the minor
children are repatriated to the USA, they will not be subjected
entirely to any foreign system of education. It is the fundamental
right of the petitioner-mother to have the company of her
children and not to be deprived of the same without a reasonable
cause.
FACTS SUPPORTING THE STAY OF THE PETITIONER I N THE
USA :
111. The petitioner is a resident of the USA and has acquired
H1B visa via sponsorship and has a good job at Ranstad, USA.
The petitioner is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA. The
petitioner is comfortably settled in the USA and is accustomed to
different kind of lifestyle, culture, society, etc.
112. We take notice of the fact that the petitioner worked very
hard to secure admission in the Cleveland State University and
completed her studies with the GPA of more than 3, while taking
care of her children. This is indicative of the fact that she is a
72
hard working woman an d would be in a position to take good
care of her minor children in accordance with the shared
parenting plan.
113. It would be too much for this Court to tell the petitioner
that she may periodically visit India to meet her children but the
children should not be asked to go back to the USA with their
father, i.e. the respondent no.2.
114. In the overall view of the matter, we have reached to the
conclusion that the respondent no.2, at the earliest, should be
directed to go back to the USA with both the minor children and
abide by the shared parenting plan as ordered by the Court at
Ohio. Although, the shared parenting plan as ordered by the
Court at Ohio stood terminated at the instance of the petitioner-
mother, yet the same can be revived once again by th e
authorities by going before the concerned court at Ohio. It is for
the parties to take the necessary steps in this regard. The
respondent no.2 shall immediately apply for the visa on the
strength of this order. If the respondent no.2 is in a position to
obtain a job in the USA on the strength of a work permit or any
other document, then it is well and good. However, we are sure
of one thing that it will be in the interest and welfare of both the
children to go back to the USA for the purpose of their
education, etc. The allegations levelled by the respondent no.2
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that the petitioner suffers from some mental illness appears to
be absolutely wild and reckless. Even otherwise this issue is a
highly disputed question of fact.
115. We would therefore hold that in the case at bar the
dominant consideration to which all other considerations must
remain subordinate must be the welfare of the child. This is not
to say that the question of custody will be determined by
weighing the economic circumstances of the contending parties.
The matter will not be determined solely on the basis of the
physical comfort and material advantages that may be available
in the home of one contender or the other. The welfare of the
child must be decided on a consideration of these and all other
relevant factors, including the general psychological, spiritual
and emotional welfare of the child. It must be the aim of the
Court, when resolving disputes between the rival claimants for
the custody of a child, to choose the course which will best
provide for the healthy growth, development and education of the
child so that he or she will be equipped to face the problems of
life as a mature adult.
FINAL CONCLUSIO N :
116. We allow this writ petition with the following directions :
(1) The respondent no.2-father shall, within one
74
week from today, apply to the authority concerned for
visa to travel to the USA with the two minor children.
(2) The concerned authority may keep the
observations made by this Court in the present
judgment in mind and, in the larger interest of the
two minor children, consider grant of visa to the
respondent no.2-father. Once the visa is granted, the
respondent no.2 shall, within one week thereafter,
proceed to travel to the USA.
(3) Once the two minor children rea ch the USA,
thereafter, it will be open for the petitioner-mother to
take care of her children.
(4) We leave it open to the respondent no.2-father
to chalk out his own plan.
(5) If the respondent no.2 wants to stay back in the
USA, it is always open for him to do so in accordance
with the law of the country. If the respondent no.2
decides to come back to India, t hen in such
circumstances, the petitioner-mother shall make both
the minor children speak to their father on-line at
least once every week.
(6) In any event, if the visa is declined to the
respondent no.2, then in such circumstances, the
75
petitioner-mother shall travel to India and pick up her
two minor children and go back to the USA. In such
an eventuality, the respondent no.2 and his family
members are directed to fully cooperate and not
create any impediment of any nature. If it comes to
the notice of this Court that the respondent no.2 or
any of his family members have cr eated any
impediment for the petitioner-mother, then the same
shall be viewed as the contempt of this Court’s order.
In addition, it will be open to the petitioner-mother to
contact the jurisdictional Commissioner /
Superintendent of Police, who shall thereafter ensure
that the custody of the children is immediately/
forthwith handed over to the petitioner-mother and
submit compliance report in that regard to this Court.
In case of any impediment despite the peremptory
direction, the petitioner-mother may apply for
appropriate directions from this Court, if so advised.
(7) We leave it open for the parties to go back to the
Court at Ohio and revive the shared parenting plan as
was arrived at vide order dated 12
th May 2021.
117. Before we close this matter, we would like to convey to the
parties that their two minor children are watching them very
76
closely. Showing the children that their parents can respect each
other and resolve the conflict respectfully will give them a good
foundation for the conflict that may, God forbid, arise in their
own lives. The parties should try to do their best to remain
relaxed and focused. It is critical to ma intain boundaries
between the adult problems and children. It is of utmost interest
to protect the innocence of children and allow them to remain
children. They must not be burdened by any adult problem.
Minor children do not have the coping skills or the intellectual
ability to understand any issues like the financial constraints,
adult relationship issues or their parents unhappiness.
118. We find the observations made by the Delhi High Court, in
the case of K.G. v. State of Delhi and another , dated
16.11.2017 in Writ Petition (Criminal) No. 374/2017 and
Criminal Miscellaneous Application No. 2007/201 7, quite
commendable, that the best welfare of the child, normally, would
lie in living with both his/her parents in a happy, loving and
caring environment, where the parents contribute to the
upbringing of the child in all spheres of life, and the child
receives emotional, social, physical and material support – to
name a few. In a disturbed marriage, unfortunately, there is
bound to be impairment of some of the inputs which are, ideally,
essential for the best interest of the child.
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119. There will be no order as to costs.
120. The Registry shall notify this matter once again after a
period of four weeks to report compliance of our directions.
………………………………………..J.
(A.M. KHANWILKAR)
………………………………………..J.
(J.B. PARDIWALA)
NEW DELHI;
JULY 14, 2022
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